REEMBERTO VLADIMIR FERREL, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6293
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
OPINION BELOW
The per curiam order of the court of appeals affirming petitioner's
conviction (Pet. App. A) is noted at 864 F.2d 792 (Table).
JURISDICTION
The judgment of the court of appeals was entered on December 9,
1988. The petition for a writ of certiorari was filed on December 19,
1989, and is therefore out of time under former Rule 20.1 of the Rules
of this Court. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
QUESTION PRESENTED
Whether petitioner should be granted relief from the court of
appeals' judgment on the basis of his claim that he was not advised of
the affirmance of his conviction until after the time for filing a
petition for certiorari had expired.
STATEMENT
After a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted on one count of
possession of more than 500 grams of cocaine with intent to distribute
it, in violation of 21 U.S.C. 841(a)(1), and one count of conspiracy
to possess more than 500 grams of cocaine with intent to distribute
it, in violation of 21 U.S.C. 846. He was sentenced to concurrent
terms of seven years' imprisonment on each count, followed by a
four-year period of supervised release. The court of appeals
affirmed.
1. On June 12, 1987, DEA Special Agent Nelson Gonzalez, posing as a
drug purchaser, contacted petitioner through a beeper number given to
Gonzalez by a confidential informant. During their conversation,
petitioner and Gonzalez used code words to arrange the purchase and
delivery of five kilograms of cocaine at $20,000 per kilogram. Gov't
C.A. Br. 2-3.
Later that day, Gonzalez and petitioner met at a restaurant.
Gonzalez was accompanied by another DEA agent; petitioner was
accompanied by Pedro Benevides and the confidential informant. A DEA
surveilance team monitored the meeting. When Gonzalez asked whether
petitioner had samples of the cocaine, which he referred to as
"photos," petitioner nodded. Petitioner then told Gonzales to follow
him to his automobile, a gray BMW parked in the restaurant parking
lot. While Benevides acted as a lookout, petitioner and Gonzales got
into the car. Petitioner told Gonzalez that the samples were in a
racquet ball can on the floor near the back seat. Gonzalez found two
clear plastic bags containing cocaine inside the can. After examining
it, Gonzalez told petitioner it was of good quality and asked to see
the five kilograms. Gov't C.A. Br. 3-4.
Petitioner, the two agents, Benevides, and the confidential
informant then drove to a nearby house. Once inside, petitioner made
two phone calls and then informed the agents that the "stuff" was on
the way. Shortly after the second call, Carlos de la Torre arrived
carrying a black shopping bag. He went directly to the house's back
bedroom, followed by petitioner, Benevides, and the two agents. De la
Torre took five packages out of the bag; they contained a total of
4.985 kilograms of cocaine. Petitioner and his co-defendants were
then arrested. Gov't C.A. Br. 4-5.
Petitioner's defense at trial was that he had been entrapped by the
confidential informant, a woman in whom he allegedly had a romantic
interest. On cross-examination, he said that he had paid for his BMW
with money made by parking cars and buying clothing for his family to
resell in Bolivia. Gov't C.A. Br. 6-8. The district court denied
petitioner's motion for a judgment of acquittal based upon entrapment.
After being instructed on the issue of entrapment, the jury returned
guilty verdicts. Pet. C.A. Br. 7.
2. In the court of appeals, petitioner's only argument was that he
had established his entrapment defense as a matter of law. Pet. C.A.
Br. 9-14. On December 9, 1988, the Eleventh Circuit affirmed his
convictions in an unreported judgment order. Pet. App. A.
In a letter dated May 8, 1989, to the Clerk of the court of
appeals, petitioner asserted that he had learned for the first time
that day that his conviction had been affirmed and that the time for
filing a petition for certiorari and a motion for reduction of
sentence had expired. He asked the Clerk to recall the mandate. Pet.
App. C. In a letter dated May 17, 1989, the Clerk's office responded
that it lacked authority to recall the mandate; the letter advised
petitioner that he would have to file a formal motion to obtain that
relief and enclosed copies of the pertinent rules. Pet. App. D.
Petitioner has not sought relief in the court of appeals. He filed
his application for leave to file a petition for certiorari out of
time on December 19, 1989.
ARGUMENT
Under this Court's former Rule 20.1, a member of the Court could
extend the time for filing a petition seeking review of a judgment in
a criminal case for no more than 30 days. The application was filed
outside that period. Accordingly, we treat the application as a
petition for a writ of certiorari seeking relief from the court of
appeals' judgment in order to permit a subsequent request for further
review. See Doherty v. United States, 404 U.S. 28 (1971) (treating a
motion for appointment of counsel as such a petition).
In Wilkins v. United States, 441 U.S. 468 (1979) (per curiam), a
prisoner filed a petition for certiorari in which he maintained that
his court-appointed lawyer had told him, falsely, that a petition had
been filed on his behalf and that he had not learned the truth until
after the time for filing a petition had expired. The petition also
indicated that the prisoner had received no answer to letters to the
attorney inquiring into the matter, and it was accompanied by
affidavits from the prisoner, his wife, and his minister swearing to
those facts. On this record, we recommended that the Court grant the
petition, vacate the judgment of the court of appeals, and remand for
further proceedings, including the entry of a new judgment and, if
appropriate, appointment of counsel to assist the prisoner in seeking
further review. The Court noted that if the prisoner had "presented
his dilemma to the court of appeals * * * , the court then could have
vacated its judgment affirming the convictions and entered a new one,
so that this petitioner, with the assistance of counsel, could file a
timely petition for certiorari." Id. at 469. However, on the facts of
that case, the Court found that the prisoner's decisiosn to apply
directly to this Court was "understandable." Id. at 470. Accordingly,
it granted the petition, vacated the court of appeals' judgment, and
remanded for further proceedings. /1/
The facts of this case do not justify following the same course.
Here, petitioner was notified no later than May 8, 1989, that his
conviction had been affirmed and that the time for filing a petition
in this Court had expired. Shortly thereafter, he was advised by the
Clerk's office of the court of appeals that he would have to file a
motion to recall the mandate and was given copies of the pertinent
rules. He apparently has done nothing to pursue his contentions in
that court or to obtain assistance from his appellate counsel in
seeking further review, and he waited an additional seven months
before filing his application in this Court. Under these
circumstances, petitioner should not be allowed to bypass the court of
appeals in seeking relief from its judgment. /2/ That court is in a
better position than this one to determine if there is any merit to
petitioner's contentions and to determine the appropriate procedural
course.
Moreover, it is clear that petitioner's case presents no question
warranting this Court's review on the merits. The only issue before
the court of appeals was whether petitioner established his entrapment
defense as a matter of law. However, there was ample evidence from
which the jury could have concluded that petitioner was experienced in
drug trafficking -- and thus predisposed to commit the crime for which
he was convicted. He orchestrated a sale of five kilograms of cocaine
for $100,000; the arrangements for that transaction included the use
of a beeper, code words, a number of confederates, and procedures
allowing the buyer to sample the drug before the delivery was made.
The jury was fully justified in its conclusion that petitioner was an
"unwary criminal" who was predisposed to commit the offenses for which
he was convicted. See United States v. Russell, 411 U.S. 423, 436
(1973); Sherman v. United States, 356 U.S. 369, 372 (1958); cf.
Mathews v. United States, 108 S.Ct. 883, 886 (1988).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
THOMAS M. GANNON
Attorney
FEBRUARY 1990
/1/ The Court followed the same course in Sotelo v. United States,
474 U.S. 806 (1985).
/2/ In Doherty v. United States, supra, and Schreiner v. United
States, 404 U.S. 67 (1971) (per curiam), the petitioners sought some
form of relief in the court of appeals before filing petitions in this
Court.